New Provisional Unlawful Presence Waiver Is Arbitrary and Lacks Due Process

by Bryan Johnson on January 8, 2013

The new provisional waiver for unlawful presence has traipsed across the newsreels for several days now since its announcement on January 2, 2013.

Overall, this new rule is positive. However, USCIS has crafted the new regulation in such a way that precludes a significant number of well-deserving immigrants from even applying.

Normally, an arrest or conviction alone do not bar an applicant from qualifying for adjustment of status.

If an immigrant is convicted of a crime involving moral turpitude (CIMT), the immigrant is ineligible to apply for adjustment of status, or their “green card.” Similarly, if an immigrant has been present in the United States for more than one year unlawfully, and then leave the U.S., the immigrant is barred from the United States for 10 years.

Both of these grounds of inadmissibility can be overcome if the immigrant applies for and qualifies for a waiver. However, Congress specifically carved the “petty offense exception” into INA section 212(a)(2)(A)(ii) for certain immigrants convicted of a CIMT.

If an immigrant qualifies for this exception–having only been convicted of one CIMT that was not punishable for more than one year and for which the conviction was not in excess of 6 months–the immigrant is not inadmissible and therefore does not need to apply for a waiver in order to adjust status to that of permanent resident.

USCIS’s new regulation, however, was made with the intent to discourage any immigrant who has been arrested–whether convicted or not–from applying for the provisional waiver. Given that Congress specifically intended for certain immigrants to be eligible for adjustment notwithstanding their arrest or criminal history, USCIS is acting against Congress’ intent in an attempt to look tough on crime.

In the real world, USCIS does not achieve the tough-on-crime look. Rather, it is simply defeating the purpose of the provisional waiver in the first place–to maintain family unity. The key word is family. The U.S. citizen spouses and children of immigrants should not be deprived of their family because USCIS wants to “punish” the immigrant for being arrested or convicted of a petty crime.

An alien is ineligible for a provisional unlawful presence waiver under paragraph (e) of this section if:

(i) USCIS has reason to believe that the alien may be subject to grounds of inadmissibility other than unlawful presence under section 212(a)(9)(B)(i)(I) or (II) of the Act at the time of the immigrant visa interview with the Department of State;

This sounds vague because it is. USCIS stated that there will be a 3 step process in their review of the background check, which provides them with infinite latitude to deny an provisional waiver application:

USCIS…will…conduct a limited review of the waiver application to determine if: (1) The individual has self-reported a ground of inadmissibility that would render him or her ineligible for the provisional unlawful presence waiver;(2) the results of the background checks reveal conduct or actions that potentially would make an individual ineligible for an immigrant visa; or (3) the individual has engaged in activities that could impact the discretionary determination regarding whether he or she warrants a favorable exercise of discretion.(emphasis added)

If USCIS determines that there is reason to believe that the alien may be inadmissible to the United States at the time of his or her immigrant visa interview based on another ground of inadmissibility other than unlawful presence, USCIS will deny the request for the provisional unlawful presence waiver.

To emphasize USCIS’s authority to abuse the already-intolerably vague standard set out above, the new regulation does not allow appeals if the provisional waiver application is denied.

Lest an applicant with an arrest history is not dissuaded from challenging USCIS’s blanket ban on thousands of otherwise qualifying applicants, USCIS “will continue to follow its existing Notice to Appear (NTA) policies to determine whether the agency will initiate removal proceedings against a particular individual or refer them to ICE.”

We hope that USCIS’s rule will be tested and that some applicants will be able to show that they qualify for the provisional waiver notwithstanding an arrest or conviction in the past.

For example, if an applicant can demonstrate that their conviction of a CIMT falls within the petty offense exception, they can argue that USCIS has no reason to believe that they are subject to a ground of inadmissibility other than unlawful presence.

Put differently, a person who has a CIMT that fits within the exception is not inadmissible. Therefore, there is no reason to believe that the person is inadmissible on the basis of the conviction. Furthermore, if properly prepared, an applicant can provide irrefutable evidence that their conviction does not render them inadmissible to a ground other than unlawful presence.

USCIS should amend this rule to allow the provisional waiver to serve its purpose of family reunification. It should leave the targeting of non-criminals and petty offenders to its wasteful sister agencies, ICE and CBP.

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